ESTA / Visa Waiver Program

&

Adjustment of Status

Usually you cannot file an adjustment of status from VWP status. Generally, a person who enters on VWP cannot adjust status to lawful permanent resident status (green card holder) while in the U.S. By entering on VWP, you certify to the Customs and Border Protection agent who admits you that you do not intend to stay in the U.S. If you intend to stay in the U.S., you are considered ineligible for the VWP and should seek the appropriate visa from the U.S. consulate in your country. 

 

The exception to this is for immediate relatives of U.S. citizens who are the beneficiaries of an immediate-relative petition and file an adjustment of status application within the 90-day authorized period. Sometimes, after people arrive in the U.S. on VWP, they might change their minds and decide they want to stay permanently with their U.S. citizen family member. If you are in the U.S. based only on the VWP, then you can file for a green card based on marriage to a U.S. citizen, or being the child of a U.S. citizen (under 21 years old and unmarried), or being the parent of a U.S. citizen, and the U.S. citizen child who petitions for you must be 21 years or older (these three bases together is called the “immediate relatives” category). However, a VWP holder who files for an AOS outside of the 90-day period or is otherwise placed in removal proceedings may be ineligible for an adjustment of status, even if they are an immediate relative. For all other kinds of green card applications, you will still have to go through the consulate in your country after the initial petition has been approved by the USCIS. 

 

However, green card applications filed by people present in the U.S. through VWP must be carefully addressed. Applicants should still be prepared to document that they did not have preconceived intent. Second, applicants should pay careful attention to timing, and be sure to file their application while they are still in VWP status in the U.S. 

 

Applicants should make it a priority, if they are eligible and decide to file for a green card while in the U.S. on the VWP, to file it within 90 days of entry. People who enter on the VWP are only allowed to stay for 90 days. After that, they are unlawfully present in the U.S., and can be removed by the government if caught. People who enter on VWP, as a condition of their entry, waive their right to review before an immigration judge prior to removal. A pending application for a green card does not protect an applicant who entered under VWP from removal, unless he filed it within 90 days. Thus, a person who enters under VWP and is eligible for adjustment of status should be careful to file his/her application before the 90 days is up. 

 

Whereas the process is more clear-cut for couples that file within the 90-day VWP validity period, USCIS adjudication of applications filed when the beneficiary overstays the 90-day period have historically varied.  Up until recent years, the attorneys around the country were experiencing different results depending on where their clients were residing.  Some USCIS offices were denying applications if the applicant had filed outside the 90-day period and then immediately removing the applicants from the U.S.; others were approving them; and others were holding them in suspense.

 

Essentially, the agency has declared that unless the VWP entrant has already received a final order of removal or is currently in proceedings, he or she is entitled to apply for adjustment of status as an immediate relative (including spouse), despite filing for their Green Card outside of the 90-day period.

 

Canada is not included on the list of countries that participate in the Visa Waiver Program; however, Canadians are admitted under North American Free Trade Agreement (NAFTA). Canadian citizens do not need a visa (except those who fall under E, K, S, or V non-immigrant visas), but do need a passport to enter the U.S. Also, under the Western Hemisphere Travel Initiative (WHTI) program, Canadian citizens must have a valid passport to enter the U.S. and must provide documentary evidence of citizenship.

 

The North American Free Trade Agreement (NAFTA) also allows Canadian citizens to enter the United States to engage in certain professional activities. The agreement allows Canadian citizens to enter as business visitors so long as they receive no salary or other compensation from a U.S. source, other than expense allowances. Also, for Canadian professionals, there are TN visas that allow Canadian citizens to engage in professional activities. 

 

Furthermore, Canadian citizens who are admitted into the U.S. without a visa are allowed to remain for 180 days; however, those who enter the United States under a B-1/B-2 visa are allowed to stay in the U.S. for 1 year and those admitted under a TN visa are allowed to stay in the U.S for three years. While Canadian citizens are not allowed to file and application for an adjustment of status, they are allowed to apply for a change of status to another non-immigrant status. It should be noted that the USCIS could look upon this application with scrutiny; therefore if the Canadian citizen would like to eventually apply for a change of status, they should be upfront about it with the USCIS border monitor when they make their entry into the United States. Doing this will decrease the likelihood of the COS application being denied on the basis of preconceived intent

 

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